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TMI Blog2020 (11) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... his contention that learned trial Judge failed to appreciate facts placed on record. Order dated 7.2.2020 was against the provision of N.I. Act. A notice to opposite party No. 2 was sent on 18.12.2017 and as per provision of Section 27 of General Clauses Act, presumption of its service, in case of its non return back to sender, is to be drawn after thirty days and after thirty days, it may be presumed that notice has been served upon the addressee and if within fifteen days of same, amount is not paid, then cause of action arises. Applicant-revisionist has sent notice of dishonour of cheque to opposite party No. 2, drawer of cheque on 18.12.2017, it was a registered notice which had yet not been received back and presumption of service may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is apparent that in this case, a complaint was filed by Rajanikant Mani Tripathi against Kiran Yadav, for an offence punishable under Section 138 of N.I. Act, P.S. Kotwali, District Gorakhpur, with this contention that Kiran Yadav received Rs. 4 lacs by cash as well as cheque, for construction work as well as payment of E.M.I. of bus from complainant and in lieu of said liability, issued a cheque No. 788900 of Punjab and Sindh Bank, Golghar, Gorakhpur, of her account, for Rs. 1,60,000/- on 23.10.2017. This cheque was deposited in the Bank of complainant ICICI Bank, Bank Road, Gorakhpur, in his account, in first week of November. But it was dishonored by bank memo dated 14.11.2017, for insufficiency of amount. This was received by complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f General Clauses Act 1897, provides:- Meaning of service by post. -Where any Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. This Court in Smt. Vandana Gulati vs Gurmeet Singh Alias Mangal Singh, AIR 2013 Alld 69, has held that not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case if the "giving of notice" in the context of Clause (b) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act." [Emphasis su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 as well as Section 27 of General Clauses Act, 1897. Hence, on the basis of statement recorded under Section 200 and documentary evidence given under Section 202 of Cr.P.C., offence punishable under Section 138 of N.I. Act was, prima facie, made out. But learned trial Court has failed to appreciate facts and law, has presumed service of notice within 20.12.2017 and has dismissed complaint. This order is apparently erroneous on the face of it and is under mis-exercise of jurisdiction of learned trial Court. Accordingly, this revision merits its allowance.
11. Allowed.
12. Impugned order dated 7.2.2020 is being set aside. File is remanded back to trial Court concerned for hearing and passing order afresh, at an earliest. X X X X Extracts X X X X X X X X Extracts X X X X
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